On September 16, 2010, OPM announced that it was encouraging federal agencies to use the new DOL medical certification forms WH-380E (for the employee's own serious health condition) and WH-380F (for the serious health condition of covered family members). OPM explained that it was encouraging the switch to the newer DOL forms because the WH-380 was set to expire on September 30, 2010.

Comment: The announcement constitutes a reversal by the OPM. When the DOL initially issued the revised medical certification forms OPM counseled agencies to continue using the old WH-380. The reason: the DOL was able to revise the medical certification forms to allow employers to secure additional information because the DOL revised the underlying regulations governing the content of medical information that an employer may require from an employee to substantiate the need for FMLA leave. Because OPM did not similarly modify the underlying Title II medical certification content regulations, OPM correctly felt that the use of the new DOL forms would result in an employer securing more medical information than was permitted by OPM regulations.

Agencies that follow the OPM's advice and use the revised DOL forms are taking a risk. OPM has not revised the regulations governing the permissible content of a serious health condition medical certification. As such, existing OPM regulations do not permit an agency to require all of the medical information contained on the revised DOL forms. Again, the new DOL forms allow an employer to secure additional medical information BECAUSE the DOL modified the underlying medical certification content regulations. OPM has not modified its underlying medical certification content regulations. The regulations continue to prohibit an agency from securing medical information other than what is specifically permitted by the Title II regulations. See 5 CFR 630.1207.

It is frankly unclear to me how OPM can counsel agencies to use the new DOL forms when, as OPM initially recognized, such use will result in securing more medical information than is currently permitted by OPM's medical certification content regulations. Moreover, it is highly likely that an agency would not fair well if it denied FMLA leave and/or took disciplinary action because an employee submitted a certification that conformed to the OPM medical certification content regulations, but did not include all of the information on the more expansive new DOL forms.

The expiration of the WH-380 does not justify the use of the new DOL forms until OPM changes its underlying medical certification content regulations. It is unclear what the OPM means when it says that the WH-380 is set to expire. Maybe that means the the DOL has set some sort of expiration date. In any event, since the use of the WH-380 is permissive, not mandatory, the fact that DOL has set an expiration date is not controlling for OPM. Nor does it change the reality that OPM has not changed the underlying medical certification content regulations.

I also understand that OPM has opined that it intends to change its medical certification content regulations to conform with the DOL- which would permit the use of the new DOL forms. It is waiting, however, for the DOL to make some additional changes to the Title I FMLA regulations. OPM's intention to change the medical certification regulations is not, however, a legally valid justification to begin using the new forms now as if the regulation has been changed! The OPM's intention to change the Title II regulations at some unknown point in the future will not be a viable defense to a claim that use of the revised DOL certification forms violates Title II of the FMLA as it, in fact, exists. Agencies are bound by regulations that are in effect, not those that have been proposed, and certainly not those that are merely contemplated.

In addition to violating the content prescriptions of the effective Title II regulations, OPM's guidance places agencies in jeopardy of violating the Rehabilitation Act/ADA. The Rehab Act places restrictions on the medical information that an employer may require an employee to provide. Without the imprimatur of the FMLA, agencies that require Title II employee's to use the new DOL forms may well be found to have required medical information without sufficient business need, thereby violating the ADA/Rehabilitation Act.

Agencies would be better off continuing to use the WH-380 until OPM revises its current medical certification content regulations. Alternatively, agencies should have legal counsel review the new DOL forms against the existing OPMregulations (5 CFR 630.1207) to ensure compliance with the Title II medical certification content prescriptions. Agencies might consider modifying the new DOL forms to take out any questions that appear to exceed the scope of the existing Title II content prescriptions.

Agencies that blindly follow the OPM's advice and adopt the new DOL medical certification forms may be inviting an avalanche of grievances and disability discrimination claims. My advice: proceed with caution!